R v SG

Court of Criminal Appeal (NSW)|2017-07-28|Before: Hoeben CJ, McCallum J, Bellew J, Callum J

Solicitors: C Hyland, Solicitor for Public Prosecutions (NSW) - Appellant Legal Aid Commission (NSW) - Respondent File Number(s): 2015 / 382013 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 May 2017 Before: His Honour Judge Williams SC

Judgment

HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.
McCALLUM J: I agree with Bellew J.
BELLEW J: On 4 May 2017, SG ("the respondent") pleaded not guilty to an indictment containing the following counts: 1. On 23 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of assault did commit an act of indecency on FG. 2. On 23 December 2015, at Crows Nest in the State of New South Wales, did assault FG. 3. On 23 December 2015, at Crows Nest in the State of New South Wales, did have sexual intercourse with FG without her consent, knowing she was not consenting. 4. On 25 December 2015, at Crows Nest in the State of New South Wales, did assault FG. 5. On 28 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of such assault did commit an act of indecency on FG. 6. On 28 December 2015, at Crows Nest in the State of New South Wales, did assault FG. 7. On 29 December 2015, at Crows Nest in the State of New South Wales, did assault FG and at the time of such assault did commit an act of indecency on FG. 8. On 29 December 2015, at Crows Nest in the State of New South Wales, did assault FG.

The nature of the Crown appeal

The appeal is brought by the Crown pursuant to s. 5F(3A) of the Criminal Appeal Act 1912 (NSW). That section is in the following terms: 5F Appeal against interlocutory judgment or order … (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.
Counsel for the respondent submitted that however the evidence of SG was viewed, its exclusion did not substantially weaken the prosecution's case against the respondent and that accordingly, the jurisdiction of this Court to hear and determine the appeal pursuant to s. 5F(3A) was not enlivened.
I am unable to accept that submission. As set out, the respondent is charged with a number of counts of assault. On the Crown case, the evidence of SG constitutes an eyewitness account of the alleged offending on 23 December 2015 which is the subject of counts 1, 2 and 3. For the reasons discussed below, the evidence of SG, taken at its highest, is capable of corroborating parts of the evidence of the victim of that alleged offending. It is the only corroborative evidence available. In these circumstances, its exclusion has clearly substantially weakened the prosecution's case against the respondent. The requirements of s. 5F(3A) are therefore met.

The Crown case against the respondent

At the time of the offending the respondent was married to FG. There are two children of the marriage, GG and SG. SG is currently 10 years of age and was aged 8 at the time of the alleged offending.
Although the respondent faces eight separate counts, counts 1, 2 and 3 are those which are material for the purposes of the present appeal. In respect of those counts it is the Crown case that between about 1:00am and 2:00am on 23 December 2015, FG was asleep in her bed and SG was lying immediately next to her. It is alleged that the respondent came into the bed, climbed on top of FG, held her down and forced her to have penile/vaginal intercourse.
On 30 December 2015 FG made a statement to police. In respect of the allegations which form the basis of counts 1, 2 and 3 she said the following (commencing at paragraph (5) of her statement): 5. About 1:00am or 2:00am on Tuesday 23rd December 2015 (the respondent) came home from seeing a movie at Chatswood with his friend (ML). I don't know what movie it was, but I remember he came home quite late. I was asleep in bed next to my daughter (SG) and had been asleep for some time. I had put the children to bed and was asleep myself. 6. When (the respondent) came home, he came into the bedroom where I was asleep and pulled the blanket off me which woke me up. (SG) was still asleep. I was still drowsy from being woken up, when I felt (the respondent) climb on top of me and pull my underwear down and off my legs. He was being very violent and I said "I don't want to do it, just go to sleep". He didn't say anything back or he didn't listen. I said "Stop, I don't want to do it". 7. (The respondent) was very strong and he pushed my legs apart very hard. I was scared about waking up my daughter so I couldn't really do anything. I felt a lot of pain in my thighs and legs from him on top of me. I was lying on my back and (the respondent) pushed my thighs open and hurt me. I noticed that he was already completely naked, he must have taken off his clothes already. 8. I felt pain in my vagina immediately when he started. He used his penis in my vagina and had sex with me whilst he was holding me down. I began to cry quietly, as I didn't want to wake up my daughter. I was very scared and worried that she might be hurt. My back was very sore and painful and all I could think about was how much it was hurting me. He kept going for a few minutes, I don't know exactly how long it went for, but I felt him pull out and he finished onto my clothes. He finished on the stomach area of my plain blue t-shirt that I was wearing. He finished and I was in so much pain I couldn't move. I was just lying there and I was too scared to do anything. 9. (The respondent) just went out of the bedroom and I laid there for a little while to make sure he was gone. I got up and changed my clothes and put my shirt in the laundry basket and was still crying quietly. I got back into bed with my daughter and tried to go back to sleep. I was in a lot of pain and was scared and worried that he would come back and hurt me. 10. I remember this as it was very painful and I am very scared of (the respondent). He is very jealous and aggressive towards me and always says to me that I cannot complain or he can do whatever he wants because we are married.
On 28 January 2016, SG was interviewed by police. The following extracts from that interview are relevant to the issues raised by the present appeal: Q.223 O.K.? Now, tell me about your dad? A. Um, he's nice but then, like, my dad said it's a lie. Um, and I felt very sad when my mum told me this. In the middle of the night I see my dad come in the room, he leaves my brother in the room, he comes and, like, he goes on top of my mum and he, like, my mum can't sleep and her tummy really hurts and, then, like, my …. my dad, he picks up my mum, he puts her on the wall and, and then, like, and then, like, sometimes he kicks my mum and then, like, and I feel really sad and I wake up and I, I start crying sometimes and mum didn't see, I go underneath the blanket and I see and then, like, I make a little window with the blanket and I look and then I see, I see my dad doing that to my mum and then, and then my mum said, "Um, if you keep, if you carry on doing this, I will call the police", and then mum, and then my dad said "Whatever", and then he let go of my mum and he went in the room. Q.224 O.K. A. Yeah. Q.225 So when you said that about your dad, that's a lot of information and thank you for telling me that, ah can we just go back to the start - - - A. Ah hmm. Q.226 So when did this happen? A. It happened, um, it happened when, like, after the police came, like, like, a day before that my dad got to stay with us for … like, one more day in the house and then in the night I was sleeping and then I woke up and, and then I saw my mum on the wall suddenly, like, she was, like, flat on the wall like this … and then, like, my dad, like, she was, like, holding her shoulders and she was like, she was like that … … Q.233 O.K. so when have you seen it happen before? A. Only once when I was sleeping with my mum. Q.234 O.K. A. Yeah. Q.235 So let's talk about that once when you were sleeping with your mum - - - A. Yeah. Q.235 - - - what happened from beginning to end. A. When I was sleeping with my mum I was hugging her and then suddenly my arm went flat, I was like that … and then my mum, and then my mum was trying to pick my hand up, my mum was trying to, like, free my hand and then, like, my dad, like, was taking her and then, and then, and then I tried to pull my mum but then, like, she, and then I let, I let go because I was really tired, I thought it was my dream and then, like, and then my dad was, started doing all that stuff when they woke up - - - Q.236 O.K. A. Yeah. Q.237 So when was that? A. That was when, um, like, I was hugging, that's when, ah, like, it was, like, in, like, like, you know how you have, like, hours of, hours of sleep, like, in the night - - - Q.238 O.K. A. Like, in the middle of the night that happened. Q.239 All right so do you know, remember what day that was? A. Nope, I don't think so. Q.240 Do you remember what year that was? A. 2015. Q.241 O.K. do you remember what month that was? A. Um nop (sic). Q.242 Were you on school holidays? A. Yeah. Q.243 Was it before Christmas, after Christmas or something else? A. Before Christmas … Q.270 So (SG), I want to talk - - - A. Yeah. Q.270 - - - to you about, you said your dad was doing really bad stuff to your mum - - - A. Yeah, um - - - Q.271 Do you think we can talk about that? A. Yeah, like, so first when my dad came in the room I was really scared, I thought, like, I watched a scary movie called The Creature and it's, like, there's a big, like, a monster, like, like, it's really fast and like, it gets, like, people and it eats them, like … and like - - - Q.272 O.K. A. - - - all the blood is on the floor, it's really scary and then I thought the creature came out, like, so scared, I went underneath the blanket and stayed still, like, … yeah and I was, like, trying to, kind of, fighting with the blanket - - - Q.273 O.K. A. And then my mum's just sleeping like this … and then … my dad came in, he picked up my mum and she woke up and then, like - - - Q.274 How did you dad pick up your mum. A. Um, like, he was, he was get, grabbed her hand and then she woke up and then my mum standed up and he said, she said, "Leave me alone", and then my, my dad, he put my mum on the ground and he was lying down on top of her then after that my mum woke up again and then she standed (sic) up and she said, "Stop it, otherwise I'm going to call the police", but then she put, my, um, my dad put her on the wall, woke up and then, um, like, I was, like, sitting like that, I was peaking a little bit like that … and then I woke up fully and then I saw my dad and my mum and then my, my dad pushed her on the wall and then I was, I, I was really sad and that, that happened, also, when I wasn't born, I was in my mum's tummy and that's when my, my brother was, like, 2 years old and he saw that happening. Q.275 When did that happen? A. Like, when, when, like, when, like, my mum and dad were, got, just got married and then, like, a few, a month, another few months. Q.276 O.K. - - - A. And then that happened. Q.277 Who told you that? A. Like, I, my mum told me. Q278 O.K. when did you mum tell you that? A. Like, um, I don't know, like, when I was 6 year no, not 6, 7 - - - Q.279 O.K. A. Yeah. Q.280 So we're going back to when you were sleeping - - - A. Yeah. Q.281 O.K. and your mum said, "Leave me alone". A. Yeah. Q.282 What else did mum say? A. She, ah, she, she said, she said "Stop it, otherwise I'm going to call the police", and then I, I, and then I woke up and I said something but then, I said, like, I said, "Can, daddy stop, leave my mum, mummy alone" and then, but my dad didn't hear me so, like, I said that but my dad didn't hear me, and my mum, and my mum heared (sic) me and, like, and then she was, like, he said, like, um, she said, um "Yeah, just leave me alone, why you have to do this every, all the time?" and then, and then that's when she, my dad pushed her on the wall. Q.283 O.K. A. Yeah. Q.284 And how do you know this? A. Because, um, I saw it, yeah, like - - - Q.285 You saw it? A. Yeah. Q.286 O.K. and what did dad say? A. He said, um, he said, um, that if you keep, if, if you keep on going like that with your boyfriend I'm going to keep on doing this. But my, but my mum didn't hear. Q.287 Why didn't your mum hear? A. Because, like, she was, like, half asleep and half awake. Q.288 O.K. And what happened next? A. Um, I, I, like, I was, like, sleeping and I woke, I took off my blanket and I was, like, sitting down, I was watching what my dad was doing but my dad didn't see me and then, like, when he, like, turned around he was like this … I, I pretended to sleep and then but I was peaking and then I saw, I saw my dad left and then my mum went back in bed. Q.289 What did you see when you were peaking? A. I saw my dad leaving, like, when, when I was pretending to sleep I saw my dad leaving. Q.290 O.K. you said that dad pushed her onto the wall - - - A. Yeah. Q.291 How did he do that? A. He, um, my mum was, like, standing on the wall, she was like this … and then, like, my dad was like that … like, so, like, my mum walked over to the wall and she was, like, like, leaning on the wall, like … and then, like, my dad went, like … like that … Q.292 O.K. and what was mum wearing when that happened? A. A brown T-Shirt and, like, grey shorts. Q.293 And what was dad wearing. A. Um, red T-Shirt and red shorts with a tiger on it. Q.294 O.K. and what was dad's mood? A. He was, like, really, really angry, like, his, his face was red and like, his eyes were, like, really, like, really, like, tough, like … like that, really angry. Q.295 And what was mum's mood? A. She, she was, like, really tired and she didn't really care because, um, my dad was doing it softly, he wasn't doing it, like, really rough and hard, he was just doing it softly because, like, he still loved my mum, he still loved her but I don't know why he did that, I think he was, like, I think he was, like, sleepwalking, like … then, but then when he woke up he left. Q.296 O.K. and where did he go? A. He went in the bed and then he fell on the bed … dead - - - Q.297 O.K. A. Basically, yeah. Q.298 And how do you know that? A. Because, like, um, I, when my mum was sleeping I, in the middle of the night I woke up and then I saw my dad walking in the room and then he fell on the bed like … Q.299 O.K. A. Like he was sleeping, yeah. Q.300 All right, and have there been any other times? A. Um, no, only once that happened, like, when I woke up, it only happened once.

The reasons of the primary judge

The primary judge set out the objection taken by the respondent to the evidence of both GG and SG in the following terms (at [3]): [3] The objection taken by Mr Fraser of counsel for the accused to the evidence of both children was not articulated with any great precision beyond asserting a lack of relevance, and if relevance was established the alternative submission was that the evidence of each child should be excluded pursuant to s 137 of the Evidence Act. The allegations against the accused contained in the indictment cover the period between 23 December 2015 and 29 December 2015 and various allegations of assault, acts of indecency and sexual intercourse without consent alleged to have been committed by the accused against his wife.
Commencing at [15], his Honour turned to consider the admissibility of SG's evidence. He summarised parts of SG's interview and concluded that her evidence was not relevant. He further concluded that its probative value was outweighed by the danger of unfair prejudice to the respondent such that, even if it were relevant, it should be excluded. I have set out below the relevant parts of his Honour's reasons when dealing with the two grounds of appeal.

Ground 1 - The trial judge erred in finding that the evidence of SG was inadmissible on the grounds that it was not relevant.

The reasons of the trial judge

Commencing at [17] his Honour said: [17] Much of the Crown's emphasis was on the answer to question 223 where the daughter asserted that she was in bed in a room with her mother when she saw her father come in and - it is difficult to discern from the answer whether she is talking about a specific incident or a number of incidents because she says: [18] "I feel sad when my mum tells me this I start crying sometimes and I go underneath the blanket and I make a little window with the blanket and I look out and see and I see dad doing it to my mum." [19] And she demonstrated on the tape creating a little window or a tent as it were with a blanket. When asked at question 226 when this happened she said, "It was a day before that my dad got to stay with us for like one more day in the house." And the Crown asserts that that is placing the recollection at some time around late December. When asked at question 223, whether she had seen "it" happen before she said, "Only once when i was sleeping with my mum." But when asked to describe in detail what happened at question 235, she provided no real detail at all and indeed asserted that she thought it was a dream. [20] From question 243 she answered some questions about a day when she was on school holidays which was before Christmas. And at question 268, said "My dad was doing all this stuff that's really bad to my mum and she went back in bed and I hugged mum again and we were sleeping." And when asked to expand at question 274. (sic) she clearly seemed to mix two events as conceded by the Crown and she concluded that answer by saying that some things had happened when she was not born, when she was in her mummy's tummy and when her brother was two years old and he saw what was happening. [21] And she then said at 278 that her mother had told her about these things when she was six or seven. She described at 294 and 295 a time where her father appeared to be really angry and his face was red and he was doing something softly and then she said she thought her father was sleep walking because then he woke up and he left. And when asked at question 300 had there been other times she said, "No only once that happened."
His Honour's recitation of SG's answer to Q.223 in the interview (which appears at [18] of his reasons) was not an entirely accurate statement of what SG had actually said. Moreover, Q.223 was asked shortly after a one minute break in the interview. It is evident from the questions and answers which preceded that break that SG's account of events given in answer to Q.223 related to a specific incident. That is also evident from SG's answer to Q.233.
His Honour concluded that the evidence of SG was not relevant. His reasons for reaching that conclusion were expressed in the following terms (at [23]): [23] That review of the supposedly relevant parts of her evidence demonstrates that in my view it is difficult, if not impossible, to extract any relevant evidence as to any particular event whether by way of corroboration of what occurred at the times alleged in the indictment, or by way of context evidence of complaint evidence, if it is put on that basis because in some respects but perhaps not dramatically as in respect of the son, there is evidence that her mother told her things about events occurring at uncertain times and there is no clear basis upon which it could (sic) asserted that the description of events that she gave for example at question 274 was something which occurred at any relevant time.

Submissions of the Crown

The Crown submitted that in order to determine whether SG's evidence was relevant, it was necessary for the trial judge to identify the facts in issue, and then assess the extent to which the evidence could rationally affect the probability of the existence of one or more of those facts. The Crown submitted that the facts in issue in respect of counts 1 to 3 included whether: 1. the respondent climbed on top of FG; and 2. FG told the respondent to stop.
Bearing those facts in issue in mind, the Crown pointed to the omission, in his Honour's reasons, to any reference to those facts, to the Crown case, or to the specific parts of SG's evidence upon which the Crown relied to support its case.
The Crown submitted that SG's evidence constituted an eyewitness account of the offending alleged in counts 1, 2 and 3, SG having told police that (inter alia) she saw the respondent enter the bedroom and lie on top of FG. It was submitted that such evidence could obviously affect the assessment of the probability of the existence of one or more of the facts in issue. It followed, the Crown submitted, that the evidence was relevant.
The Crown further submitted that the trial judge's reference to the possibility of FG having told SG about certain events (as opposed to SG having observed those events herself) indicated that in determining the relevance of the evidence, his Honour had had regard to the possibility that it was contaminated. The Crown submitted that such an approach reflected error because the trial judge was required to determine relevance on the basis that the evidence would be accepted, without considering questions of credibility or reliability.

Submissions of the respondent

Counsel for the respondent accepted that the answers given by SG to questions asked of her in the interview were at least capable of establishing the fact that she had personally witnessed acts of violence by the respondent upon FG. However, he submitted that it was necessary to consider the evidence of SG in light of the imprecision in which she had expressed herself.
It was submitted, in particular, that at the same time as SG told police that she saw certain events, she had suggested that her observations were images from a dream, that the events may have happened before she was born, and that she may have been told about various events by FG or by her brother. It was submitted that these statements suggested that what SG had told police was based upon things that she had been told by someone else, rather than something that she herself had witnessed. In these circumstances it was submitted that the evidence was not properly regarded as eyewitness testimony, and was not relevant.

Consideration

Section 55 of the Evidence Act 1995 (NSW) ("the Act") is in the following terms: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
In a criminal proceeding, the facts in issue are those which establish the elements of the offence: Hughes v The Queen [2017] HCA 20 at [16].
The term "probative value" is defined in the Dictionary to the Act as follows: "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Section 56 of the Act further provides: 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.
The use of the word "could" in s. 55 means "it is possible that it may". It follows that s. 55 is to be given a wide interpretation: Nye v State of New South Wales & ors [2002] NSWSC 1270 at [13]. The width of the section is also reflected in the fact that the effect of the evidence on the assessment of the relevant probability (namely the probability of the existence of a fact in issue) may be direct or indirect: Zaknic Pty Limited v Svelte Corp Pty Limited (1995) 140 ALR 701; [1995] FCA 1739 at [11]. Consistent with this approach, in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) said (at [38]): [38] By s 55, evidence is relevant if it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." There can be no doubt that the reference to the effect that the evidence "could" have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its "rational" effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.
As is clear from the penultimate sentence in [38] of the majority's judgment, relevance is to be determined on the basis that the evidence will be accepted. In this regard, the majority went on to say (at [39] - [40]): [39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. [40] Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is "probative". Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, "probative". But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.
Their Honours continued (at [52]): [52] Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two - reliability and credibility - as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence.
For the reasons set out in [17] above, it is apparent from a reading of the whole of the interview that in answering Q.223, SG was referring to a specific incident which occurred shortly before Christmas 2015. This is of some significance bearing in mind the Crown case that the offending in counts 1, 2 and 3 occurred on 23 December 2015. Part of the account given by SG in answer to Q.223 was that the respondent had "(gone) on top of (her) Mum". One of the facts in issue is whether the respondent climbed on top of SG. However in reaching his determination, the trial judge did not consider the nature of the Crown case on counts 1, 2 and 3 and did not identify the facts in issue. Both of those steps were essential to a determination of the relevance of the evidence of SG.
Moreover, it is clear from his Honour's reference to there being "evidence that (FG) told (SG) things about events occurring at uncertain times" that in determining the relevance of the evidence, his Honour had regard to its reliability. That reflects an approach contrary to that prescribed in IMM. It was not part of his Honour's function, in determining relevance, to consider whether or not there may be a basis or bases for the rejection of the evidence by the jury. His Honour was required to take the evidence at its highest and assume that it would be accepted.
In the circumstances of the present case, that error in approach is highlighted by that part of SG's answer to Q.223 in which she said: Um, he's nice but then, like, my dad said it's a lie. Um, and I felt very sad when my mum told me this.
His Honour appears to have interpreted SG's reference to "when my mum told me this" as an indication that FG told SG about the incident which is the subject of counts 1, 2 and 3. However, another interpretation is that SG's expressed sadness was because FG had told her, not about any event, but about the fact that the respondent had asserted that FG's allegations were a lie. That highlights the trial judge's incorrect approach in failing to take the evidence at its highest.
In these circumstances, the conclusion of the trial judge that it was "difficult if not impossible to extract any relevant evidence as to any particular event" was an error. Bearing in mind the width of s. 55 of the Act, the evidence of SG is plainly capable of rationally affecting, directly or indirectly, the assessment of the probability of one or more facts in issue. It follows that the evidence is relevant under s. 55 of the Act, and admissible under s. 56. Ground 1 is made out.

Ground 2 - The trial judge erred in finding that the probative value of the evidence of SG was outweighed by the danger of unfair prejudice to the respondent.

The reasons of the trial judge

Having concluded that the evidence of SG was not relevant, the trial judge said (at [24]): [24] In the event that minds differ as to relevance, turning to the question of s 137, I would also find that the probative value of any evidence would be outweighed by the danger of unfair prejudice to the accused, given the matters to which I have referred in the interview making it difficult if not impossible for the accused to adequately test the contents of any assertions in the interview.

Submissions of the Crown

The Crown submitted that his Honour had concluded that the evidence was lacking in probative value because of an ambiguity as to the timing of the events that SG had said that she witnessed, along with the fact that there was a possible alternative explanation for what SG had seen. The Crown again submitted that the trial judge's failure to identify the facts in issue was material, and was indicative of error. The Crown further submitted that it was significant that the trial judge did not refer, at any stage, to SG's assertion that she saw the respondent lie on top of FG, and that she heard her mother voice her lack of consent, both assertions being corroborative of FG's evidence. These matters, it was submitted, were indicative of the high probative value of the evidence.
It was further submitted that the danger of unfair prejudice identified by the trial judge, namely the difficulty for the respondent in adequately testing any assertions made by SG, was not a proper basis for excluding the evidence given its high probative value. It was submitted that any discrepancies in the evidence of SG, and any possible confusion regarding what she had said, did not render it likely that the evidence might be misused by a jury. The Crown submitted that evidentiary shortcomings of that nature were not uncommon, could be tested in cross-examination and would, if established, be readily apparent to the jury.
The Crown submitted that if the correct approach were adopted it would necessarily lead to the conclusion that the probative value of the evidence was high, and that the danger of unfair prejudice was low. It was submitted that in the circumstances of the present case, any uncertainty or ambiguity arising from what SG told the police was not sufficient to rob the evidence of its high probative value, or to render its admission unfairly prejudicial to the respondent.

Submissions of the respondent

Counsel for the respondent submitted that the probative value of the evidence depended upon how it was viewed. He appeared to accept that if the conclusion was reached that SG's evidence amounted to an eyewitness account of the alleged offending (which is the basis on which the Crown puts it) then its probative value would be higher than would be the case if it was simply lead as evidence of complaint.
However, counsel submitted that even if the evidence was relied upon as an eyewitness account, it remained the case that it was inherently confusing, and that SG had not given a clearly delineated account of events when she was interviewed. In particular, counsel submitted that it was not clear what event SG was talking about at any given point in the interview, resulting in an inability on the part of the respondent to properly test the evidence. It was submitted in these circumstances, the respondent would be placed at an unfair disadvantage in defending the allegations, and that it was open to the trial judge to reach the conclusion he did.

Consideration

Section 137 of the Act is in the following terms: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
A determination of whether evidence should be excluded pursuant to s. 137 of the Act requires two separate assessments, followed by a final determination. The first assessment is that of the probative value of the evidence. The second is an assessment of the danger of unfair prejudice that might be caused to the accused by its admission. Once those assessments have been made, a trial judge must determine whether the identified danger of unfair prejudice outweighs the probative value of the evidence. If the result of that assessment is that the probative value of the evidence is so outweighed, the trial judge is obliged to exclude it: R v Burton [2013] NSWCCA 335 at [134] per Simpson J (as her Honour then was). The fact that there may be competing inferences which can be drawn from the evidence, or the fact that there may be alternative interpretations of it, are irrelevant to the assessment of probative value for the purposes of the section: Burton at [160].
The unfair prejudice of which s. 137 speaks may be constituted by a danger that a jury may make improper use of the evidence, for example, by giving it more weight than it properly deserves, by considering it in a manner logically unconnected with the issues in the case, or by allowing it to provoke an irrational, emotional or illogical response. Unfair prejudice may also be occasioned because the evidence has some feature which is likely to lead to a jury giving it more weight than it warrants, or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: R v Dickman [2017] HCA 24 at [48] per Kiefel CJ, Bell, Keane, Nettle and Edelman JJ citing Festa v R (2001) 208 CLR 593; [2001] HCA 72 at 602-603; [22] per Gleeson CJ.
In the present case, the trial judge did not make an assessment of the probative value of the evidence. It is to be inferred that he concluded that its probative value was low because of the matters to which he referred at [23] of his judgment. For the reasons already given when considering ground 1, that approach reflected error. Taking it at its highest, the evidence of SG was an eyewitness account of events and was capable of corroborating specific aspects of the allegations made by FG. Bearing in mind the terms of the definition in the Dictionary to the Act, the probative value of that evidence was high.
The unfair prejudice identified by the trial judge was that the matters to which he had referred made it "difficult if not impossible" for the respondent to adequately test the contents of any assertions made by SG. I am not able to accept that to be the case. It will be open to counsel for the respondent, as it would be at any trial, to cross-examine SG about her assertions. The obvious purpose of cross-examination is to test the assertions which are made in evidence in chief. There is, in my view, no danger of unfair prejudice to the respondent, be it on the basis identified by his Honour or otherwise.
For these reasons, the probative value of the evidence is high and the danger of unfair prejudice is low. In those circumstances, s. 137 of the Act is not engaged. His Honour was in error in excluding the evidence on that basis.

CONCLUSION

For the reasons outlined, the evidence is relevant and should not be excluded from the jury's consideration. Because the matter has been fully argued, this Court should make orders determining the issue of the admissibility of the evidence of SG. To remit the matter for further argument in the District Court would serve no purpose: see R v Ali [2015] NSWCCA 72 at [74].
In these circumstances, I propose the following orders: 1. The appeal by the Director of Public Prosecutions against the determination of his Honour Judge Williams SC of 5 May 2017 excluding the evidence of SG is allowed. 2. The determination of his Honour Judge Williams SC excluding the evidence of SG is set aside. 3. The evidence of SG is admissible in the proceedings against the respondent.

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